The Supreme Court’s Take on Cakes Is Nothing But Empty Calories for Creative Industries

A very joyous rainbow crepe cake not created by the Masterpiece Cakeshop (image courtesy joyosity’s Flickrstream)

The Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission — a case involving a Colorado baker who refused to sell a custom wedding cake to a gay couple on the basis that it violated his religious beliefs — is a bit like a wedding cake. It offers a slice for everyone but the flavor is bland and insubstantial.

The 7-2 opinion does not address the anticipated conflict between religious freedom and anti-discriminatory protections for gay people, nor even whether baking a cake is protected speech. Instead, the court ruled for the baker on narrow, process-based grounds, finding that the Colorado Civil Rights Commission showed impermissible hostility toward the baker’s religion in deciding his case. In so doing, the court affirmed the rights and dignity of gay persons and the general principle that religious objections are not a permissible basis on which business owners may discriminate; it also expressly held open the possibility that a case involving similar facts might be decided differently in the future.

What does this decision mean for creative industries and creative expression? In truth, very little. The case does not turn on freedom of speech or expression. Only one Justice writing in concurrence, Justice Thomas, even considers the free speech aspects of the case. Justice Kennedy who authors the majority opinion leaves open the question of whether designing a wedding cake is protected artistic expression, and lists factors that might be relevant in determining whether it is protected “speech” or the “free exercise of religion.” “If a baker refused to design a special cake with words or images celebrating the marriage — for instance, a cake showing words with religious meaning — that might be different from a refusal to sell any cake at all,” he writes. In a concurrence, Justice Gorsuch disagrees, arguing that regardless of message a wedding cake is a symbol of a wedding and thus it is protected symbolic expression like an emblem or a flag. Though such considerations may signal the direction of the court in future decisions, they are not the basis of the court’s decision in this case.

In reaching its decision for the baker, the Court takes great pains to observe that the dispute arose at a time when same sex-marriage was not legally-recognized in Colorado and before the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges, 576 U.S.___ (2015). In 2012, Charlie Craig and David Mullins, went to the Masterpiece Cakeshop outside Denver to order a wedding cake. The owner of the bakery, Jack Phillips, refused to provide a custom cake for the couple citing his religious objection to same-sex marriage, even though he routinely created wedding cakes for opposite-sex couples. The Colorado Civil Rights Commission determined that the Phillips had discriminated against Craig and Mullins on the basis of their sexual orientation in violation of Colorado’s Civil Rights Act.

It was the Colorado Civil Rights Commission’s handling of the baker’s claim that Supreme Court finds faulty. Although the state has the authority to protect the rights of gay persons, the court opines, it cannot display hostility to religious views in enforcing these rights. Phillips was entitled to “neutral and respectful” consideration of his claim and the Colorado Civil Rights Commission displayed “elements of a clear and impermissible hostility,” as evidenced in comments made by commissioners during public hearings and the Commission’s dismissal of three cases involving bakers who refused to create cakes with anti-gay messages and imagery.

Of the public statements by commissioners, the court takes greatest exception with a comment that freedom of religion has been used to justify discrimination throughout history, citing examples from the holocaust to slavery, and that religious belief is “one of the most despicable pieces of rhetoric people can use….to hurt others.” According to the court, the comment twice disparages Mr. Phillips’ religion, by using the word “despicable” and by characterizing belief as “rhetoric,” which implies a lack of substance or insincerity. Never mind that the comment addressed religion generally, nor that rhetoric is typically considered something robust, not insubstantial, and worthy of first amendment protection.

The second basis for the court’s finding of religious hostility, the Commission’s treatment of complaints brought against three other bakers by a Christian man named William Jack who requested cakes shaped like open bibles with anti-gay symbols and verses denouncing “homosexuality” as “detestable,” is the source of greatest disagreement among the Justices, spawning three concurring opinions and a fiery dissent.

The bakers in all three cases were willing to make a bible-shaped cake but refused to add the anti-gay messaging because they found it offensive. According to Justice Kennedy, the Commission showed religious bias because it substituted its own assessment of “offensiveness” in dismissing the claims. The government is not allowed to make normative judgments about the legitimacy of a person’s religious beliefs. But to my reading of the record, it is not apparent that the Commission did more than to accept the bakers’ claims that they found the messages offensive.

In the concurrences and dissent on this issue, we gain the clearest view of how the various Justices might rule on similar facts in the future. Justice Kagan, joined by Justice Breyer, faults the Commission’s reasoning in deciding the baker cases but not its results. Craig and Mullen were denied service on the basis of their identity as a gay couple, a class protected under the anti-discrimination statute. Jack, by contrast, was not singled out because of religion. The bakers would have refused to create the messages he requested for anyone. Anti-discrimination laws protect individuals, not messages. Justice Ginsburg makes a similar argument in her dissent that is joined by Justice Sotomayor, but she finds the majority’s evidence of hostility rather thin, nothing that is not of a sort that the court has historically considered a free exercise violation. On the other end of the spectrum, Justices Gorsuch, Thomas and Alito appear to recognize no legal distinction between the denial of a wedding cake for a gay wedding and the refusal to create cakes with the anti-gay messaging.

During oral argument on the Masterpiece Cake case, Justice Breyer raised the concern that drafting an opinion in favor of the baker had the potential to “undermine every civil rights law since year 2.” In the end, the court managed to craft an deux ex machina opinion for a divided country with a message that attempts to encourage respect, dignity, and tolerance on all sides. The result is a case of paltry significance that nearly everyone can abide.